Note: Decisions of a three-justice panel are not to be
considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2002-096

NOVEMBER TERM, 2002

State of Vermont

v.

Larry J. Wheelock

}
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}

APPEALED FROM:

District Court
of Vermont, Unit No. 3, Lamoille Circuit

DOCKET NO. 135-3-01 Lecr

Trial Judge: Howard VanBenthuysen

In the above-entitled cause, the Clerk will enter:

Defendant appeals from a judgment of conviction, based on a
jury verdict, of DUI sixth offense. He contends the court erred in rejecting his
request to instruct on the necessity defense. We affirm.

The record evidence may be summarized as follows. On the
morning of February 16, 2001, at approximately 3:30 a.m., Deputy Darin Barber of
the Lamoille County Sheriff' s Office
was dispatched to the Bushnell home in the Town of Johnson to investigate a
report by the homeowner. When he arrived, Deputy Barber observed a Bronco
four-wheel drive vehicle parked in the driveway with its engine running and
headlights on. Approaching, he observed an individual in the driver'
s seat whom he recognized as defendant. Defendant appeared to be asleep. There
was a beer can between his legs, and two twelve-packs of beer in the back seat.
The gear shift lever was in reverse. Deputy Barber woke defendant with some
difficulty, observed obvious signs of intoxication, and arrested and processed
him for DUI.

Defendant' s
brother testified at trial that he and defendant had been drinking at a bar
earlier in the evening, and that when they left he drove the Bronco while his
brother slept in the passenger seat. On their way home, according to the brother's testimony, they passed a car driven by his boss
" a logger
" who stopped and asked them to help
him find some missing chainsaws. The brother couldn't wake defendant, so he pulled into the nearest driveway, parked, turned off the
engine and headlights, and went with his boss. Defendant testified that he
remembered waking up in the car, felt cold, and shifted to the driver'
s seat to start the engine and turn on the heat.

The trial court denied defendant'
s request to instruct on the affirmative defense of necessity, finding that the
evidence failed to establish the requisite elements. The jury returned a verdict
of guilty, and defendant stipulated to his prior DUI convictions. He was
sentenced to serve two and a half to five years. This appeal followed.

Defendant contends the court committed reversible error by
rejecting his request to instruct the jury on the defense of necessity. He
acknowledges that counsel did not object to the court'
s failure to give the charge at the conclusion of the instructions, and that our
review is therefore limited to plain error. State v. Tahair, 172 Vt. 101,
104-105 (2001). To warrant an instruction on the necessity defense, defendant
must adduce evidence establishing a prima facie case as to each of the elements
of the defense, which we have identified as follows: (1) an emergency situation
arising without fault on the part of the actor concerned; (2) the emergency must
be so imminent and compelling as to raise a reasonable expectation of harm; (3)
the emergency must present no reasonable opportunity to avoid the injury without
doing the criminal act; and (4) the injury impending from the emergency must be
of sufficient seriousness to outmeasure the criminal wrong. State v. Baker,
154 Vt. 411, 415 (1990).

The trial court here correctly concluded that the record
evidence failed to support the requested instruction. Defendant claimed that the
emergency consisted of the threat of freezing or hypothermia if he failed to
move to the driver' s seat and start
the engine in order to turn on the heat. Yet the undisputed evidence also showed
that defendant could simply have started the car and driven home, which was only
two miles away, if he had not been intoxicated, a state induced by his own
actions. Therefore, defendant failed to establish a prima facie case on the
" without fault"
element of the defense. See State v. Squires, 147 Vt. 430, 431 (1986)
(defendant failed to establish "
without fault" element of necessity
defense where evidence showed that defendant'
s intoxication created the claimed emergency). Equally deficient was the
evidence relating to the third element, concerning the absence of reasonable
opportunities to avoid the injury without committing the criminal act. Defendant
testified that he thought he was in his mother'
s driveway when he awoke and started the car, yet
" as the trial court observed
" he offered
" no explanation for why he didn'
t just get out of the car and go into his mother'
s house." The evidence thus failed to
establish even a prima facie case as to the absence of reasonable alternatives.
Accordingly, we discern no error in the court'
s decision denying the request to instruct on the necessity defense.